PREAMBLE
The fatal air crash has raised many questions, especially in regards to compensation and the reimbursement the families of the victims would receive. Further, it has been asked, can third parties to the crash receive compensation.The Bench Report will look critically into the issues pertaining compensation given to crash victims and the laws governing them in Nigeria.
INTRODUCTION
The safety and security of operations, form the background of civil aviation. This is established in the availability of regulations, machineries and other resources for the prevention of accidents, including technical documents & laws both national and international, which constitute the bed-rock of aviation laws in Nigeria.However, despite all the careful regulatory rules put in place for the safety of aviation, accidents are inevitable to the extent that passenger casualties and deaths occur affecting, sometimes, the people on the ground (third party).Our concern is not the prevention of accidents but the availability of adequate compensation for third parties.
AIR ACCIDENT
Section 48(3) of the Civil Aviation Act uses the word accident but it does not go further to define it. However section 2(1) of the United kingdom regulation defines accident as Ò
an occurrence other than an accident,associated with the operation of an aircraft, which affects or could affect the safety of operation
LIABILITY
The liability in civil aviation accidents is regulated by the combined provisions of section 48 of the Civil Aviation Act 2006, which adopts the Montreal Convention of 1999;the Warsaw convention on carriage by air 1929 (colonies,protectorates and trust territories) order, 1953 and domesticated in the laws of the federation 1958. Despite the existence of the laws of the federation 2004, can we still say those laws are applicable in Nigeria? The answer was supplied by the supreme court in Ibidapo Lufthansa airlines (1997) 4 NWLR (pt498) 124.
Liability of carriers to the passengers on board is provided for under section 48(3) of the Civil Aviation Act 2006, where the sum of $30,000.00 within 30 days, should be given as an advance payment to the family of the victim and then$100,000.00 subsequently. the latter fiscal amount stems from Nigeria's membership with the International Civil Aviation Organization (ICAO) which was established by the Convention on International Civil Aviation also known as the Chicago Convention.The Warsaw Convention by its article 22, also limits the liability of the carrier to 125,000 francs where willful misconduct is not established. Willful misconduct is defined and explained by the supreme court in the case of Harka AirServices Nigerian ltd v Keazor (2011) All FWLR (pt591) 1402.Recourse was not had to this limitation by the Montreal Convention.
LIABILITY OF DANA AIRSERVICES TO THIRD PARTIES
Affected passengers of the plane crash are covered by the provisions of section 48(3) of the Civil Aviation Act 2006,However section 49(2)(a)&(b) increases the liability of air operators to cover victims on
land or water.
Recently Mr. Yomi Oshikoya of Lloyds of London, DanaAirÕs Insurer, disclosed at the Lagos State UniversityT eaching Hospital (LASUTH) Ikeja, that adequate compensation will be paid to the families of the June 3 rd crash.
THE NATURE OF THECOMPENSATION
It is certain that a reasonable man would ponder on the nature of compensation and ask himself,
should compensation be paid with or without proper assessment of the lost properties and incurred injuries?
the word compensation has been defined by Blackburn In Livingstone v Rawyard Coal Co (1880) 5 AC 25 at39 the sum of money which will put the person who has been injured or who has suffered in the same position as he would have been if he had not sustained the wrong for which he is now getting compensation for reparations this is referred to as
restitutio in integrum.
The law in operation in Lagos, that is, The Fatal Accident LawCapF1 volume III Laws of Lagos State Nigeria, in section 3provides for the victims family to get compensation, where death has occurred, from the air operators or whomever is responsible for the accident. However, this can only be done where there is enough evidence to prove negligence.
LIABILITY OF THENIGERIAN CIVIL AVIATION AUTHORITY
The Nigerian Civil Aviation Authority (N.C.A.A) is a body corporate and among other things is capable of suing and being sued by virtue of section 2 of the Civil Aviation Act(C.A.A), 2006 which created it.The Civil Aviation Act in its section (1) charges the Minister with the responsibility of formulating principles and strategies for efficient and safe services by air carriers.The Authority shall also issue Air operator certificates and all other certificates relating to the safety of air transport undertakings and shall by regulation review such certificates[section 34(1) & (2)]
Also the Authority may exercise its power to revoke suspend or vary a licence, permit or certification, if it is satisfied that the holder of the licence has contravened any of the provisions of the Act or provisions made thereunder especially as regards safety.The provisions of the Civil Aviation Act has made it clear that the Nigerian Civil Aviation Authority as an agency of thef ederal government owes a duty of care to its citizens andwhere in default may be liable in tort for negligence. The certificates required of them to issue to air operators is not a one time thing and is therefore subject to renewal.
The doctrine of strict liability will probably apply to make theN.C.A.A liable because the general though would be that if they had diligently pursued their duty to ensure that air operators donÕt violate the rules, they would have detected the fault in the plane and prevent its continuous use of theplane.Section 27 of the C.A.A also provides that the authority shall have the power to carry out investigations into complaintsa nd occurrences , after due notice has been given to the person concerned. Governor of Akwa-ibom on the record made a complaint about the plane and its unsafe state.Where it can be fully established that the N.C.A.A despite the complaints did nothing about it, or that they have beenr eluctant in their duties to renew issued certificates, or that they negligently issued or renewed certificates of defaulting air operators, they will be liable as a necessary party to pay compensation to the third party victims of the crash.
CONCLUSION
Although there is no real replacement for the lost lives in the crash. We cannot escape from DanaÕs duty to its customers. And the laws regulating aviation stipulates that Dana mustrecompense in fiscal dues. The Bench Report has been able to show that DanaÕs liabilities extend to that of the third parties(the people on the ground) through section 48 and 49 of the Civil Aviation Act. Therefore, if there was to be an issue of Dana denying or refusing to accept its third party liability, alaw suit can be brought successfully as the courts will rely heavily on the above sections.
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